Kura v Police - [2020] NZHC 939

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-000032

[2020] NZHC 939

BETWEEN
NATHAN BRIAN KURA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 7 May 2020

Appearances:

C G Nolan for Appellant

J H Whitcombe for Respondent (via VMR)

Judgment:

7 May 2020

JUDGMENT OF DUNNINGHAM J

Introduction

[1] Nathan Kura, the appellant, was sentenced by Judge Couch on 19 March to two years and four months’ imprisonment on 10 charges. These were theft over
$1,000, dishonestly using a document, driving whilst suspended, wilful damage, receiving under $500, failing to answer bail, dishonestly getting into a vehicle, failing to stop and two counts of theft under $500.1 The appellant appeals that sentence.

Facts

[2] The appellant had his licence suspended for three months on 1 November 2018. On 6 November 2018 he was stopped by police while driving a vehicle on Barrington Street.

1 Police v Kura [2020] NZDC 5176.

KURA v NEW ZEALAND POLICE [2020] NZHC 939 [7 May 2020]

[3] On 4 February 2019, the appellant was arrested for breaching bail. He was handcuffed and placed in the back seat of a patrol vehicle. The appellant became aggressive and kicked the car door multiple times, causing the top of the door to bend out and preventing it from being able to close properly.

[4] On 18 February 2019, a woman lost her ASB credit card. The appellant came into possession of that credit card the next morning and used it to purchase $53.40 of grocery items at Fresh Choice Parklands.

[5] A Toyota Surf vehicle was stolen from Amberley on about 23 June 2019. In the afternoon of 25 June, the appellant drove that vehicle into Z Energy fuel station at Belfast. The number plates were covered by cardboard. The appellant pumped $70 of diesel into the vehicle while his associate went into the store, and they then left without paying for the diesel. After leaving the garage the appellant took the cardboard off the plates, revealing false number plates. Police saw the vehicle turning off State Highway 1, and indicated for the appellant to pull over with red and blue lights. The appellant drove off, and the police activated the sirens. The appellant continued to drive at speed, going through a stop sign. He pulled over on two occasions before speeding off again when police approached the vehicle. Eventually police ended the pursuit due to concerns for public safety.

[6] At around 4.30 pm on 16 July 2019, the appellant drove into Z Energy fuel station at Shirley and pumped $40 of diesel into his vehicle. He drove away without paying.

[7] In the early morning of 17 July 2019, the appellant and an associate entered the Christchurch International Airport arrival/departure lounge. The appellant acted as a lookout while his associate entered the Spark Kiosk and stole 13 mobile phones and associated equipment from locked cabinets.

District Court decision

Sentence indication

[8] Judge Couch gave the appellant a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NZHC 939
Decision Date: 7 May 2020

CaseChat Overview and Summary

Nathan Kura appeals his two years and four months imprisonment sentence on 10 charges, including theft over $1,000 and driving while suspended. The respondent accepts the Judge made a mathematical error but contends the sentence was otherwise appropriate. The court identified the appeal required it to determine whether the sentence was manifestly excessive and not justified by the relevant sentencing principles. The court found that the starting point for the lead charge was appropriate, but that the Judge had made a mathematical error. It found the uplifts for other charges, offending on bail and the appellant’s criminal history were appropriate, but that the discount for personal mitigating factors should be increased. The court found that the appellant was not entitled to credit for assistance to the authorities because police did not charge the person named by the appellant as his co-offender. The court substituted the sentence with two years and one month’s imprisonment and reduced the reparation order in respect of the stolen phones to $3,750.

Orders